Noorah101

Excellent, thank you to both Emjoys. Another word of caution, you might not want to tell the attorney you will be posting anything he says on a public forum....it could very well change what he advises you.

Rene

emjoy

Great advice!
ta very much

MrEmjoy

Tomorrow's sunday by the way

We'll ask Monday though for sure.

danfan

When I did it, I was told no, it wouldn't be an classed as an overstay as I was in "pending" status. But that's just what I was told - I do not know the official answer.

Tracym

I asked this question - while AOS is pending, apparently one is here "under color of the law" - i.e. it's ok.

What I do not know, however, is if the AOS is denied - do they THEN consider the time spent an overstay?

Unless you're saying you were told no to that...

danfan

I'm not sure, just going by my experience. A few weeks before we go married I met with my atty to work out the best options. Her answer was that as long as both the marriage and application for AOS were submitted before the 90 days was up then I could do it. We married day 87 and paperwork was in day 89. It didn't raise any eyebrows at my interview. That was 5 years ago though so I don't know what might have changed since then.

danfan

Yes, that's what I meant. It was pending & if they denied, then I'd be back to square one but it wouldn't be an overstay because they permitted me to stay while awaiting the decision. Like I said though, that was a few years ago so I don't know what might have changed.

Tracym

OK, was just making sure I understood you - thanks

Bluegrass Lass

If it is considered an overstay, this will lead to a 3/10 year ban then, depending on how long a decision took for the AOS.

But I wonder if this would be consistently enforced by all offices? Because we all know how consistent USCIS is.

emjoy

if they did impose a ban based on a rejected AOS after VWP- and based in the length of your overstay, there are several things wrong with the logic.

if you apply for AOS, you can't leave the country until you receive an AP. that's my understanding. So, to deny an application for AOS, then penalize someone based on how long they overstayed their original VWP- when it's impossible for them to leave, and their overstay was dependent on how long it took to process the application...

i just don't see how they can enforce a ban for someone who files within the 90 days

Tracym

It is not at all impossible to leave before you have an AP - you can leave anytime you like. Of course, they won't let you back in

Your logic is just fine - the only problem is - will the USCIS use logic?

As a VWP entrant - you have basically no rights to appeal their decisions. It is the risk of trying to adjust from the VWP.

That said - probably most people who file within the 90 days are fine. I do not know what happens to any who are rejected. I would certainly put the question to an attorney when you talk to one.

meauxna

Because people file frivolous cases all the time, when they're not entitled to the immigration benefit?

ian-mstm

Receiving A/P is not dependent on a successful AOS. So, it's prefectly fine to come and go on A/P while the AOS is in process. Once the AOS is denied, however, the *overstay that triggers the ban* goes back to the original expiry date of the VWP. Whether you ever use A/P to travel is largely irrelevant... since it doesn't affect the outcome.


This is a really good reason why it's never a good idea to file for AOS directly from the VWP. That said, adjustment usually takes more than a year, so at least there's no extra penalty if AOS takes 1 year or 5 years to deny!


Their sandbox... their rules! However, never forget that when you enter the US on the VWP, you waive your rights... so you can't have it both ways.

Ian

emjoy

we spoke with an immigration attorney today to get a feel for what we're facing, and he seemed fairly confident about filing AOS after VWP in our case
though a concern was that he seemed less rushed to file than we are and mentioned that if you lawfully married a USC within in 90 days you have the right to file for AOS eventually. He also said some people are here for years before attempting to file AOS. I dont think that's really relevant because some people are risk takers who live on the edge. I obviously am not one of those people.

when we asked if you could incur a ban if it was rejected his response was 'is there any reason they would want to reject you?' which was basically saying 'have you done something they'd want to keep you out of the country for'. I took that half answer as further evidence that they will decide case by case and as was so aptly put, 'it's their sandbox- their rules'

Noorah101

Hmmm.. I wonder if that means he doesn't know either? Otherwise, seems to me if he knew the answer was yes, he'd be advising against adjusting from VWP, since it *could* get denied, and you *could* face a ban. Or, it means "no" and he just didn't come right out and say that. ARGH. LOL

Well, a denial doesn't have to come from your side, either. If you get a really crabby AOS interviewer, and he asks you to show proof that there were no plans to stay when entry was made on the VWP, and you can't prove that, or the officer isn't happy with your proof....then you risk a denial anyway.

Rene