Can a Visa Waiver Overstay (over 90 days) Adjust Status if married to a USC?

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zonryza

Registered Users (C)
Gosh, this is a hard topic. Let me try to explain the best way possible. Ok, so a lady from church arrived from Argentina in 1996 on a visa waiver. She did not return to Argentina. She married a LPR in 2002, but he became a USC in 2006 and for her in 2006. She received an APPROVAL NOTICE (I-797), in November 2006, approving the I-130, she being the "Spouse of a US Citizen".

On the I-797, the body of the letter states nothing about her being able to Adjust Status here in the USA. Rather, it says that her paperwork will be transfered to the National Visa Center. And that's exactly what they've done. They've transfered her case to NVC, and now they're asking for Police Reports and all that.

She and her husband paid some "Notaria" (I can't stand "notarias") from Winchester, VA to do all the paperwork, and they were under the impression that Argentine wife would AOS here in the USA. But obviously, if they're getting NVC stuff, it shows that Argentine wife will have to return to Argentina. Both husband and wife did not think that NVC correspondence meant wife having to return to ARgentina. Well, duh! Yes, that's what it means!

I don't understand why, though. Shouldn't Visa Waiver Overstays be able to AOS here in the USA if married to a USC? I read the instructions on the I-485, and it clearly states that Visa Waiver Overstays cannot AOS UNLESS HE/SHE IS AN IMMEDIATE RELATIVE OF A US CITIZEN. So, .....what's going on here?

Thanks for your responses.
 
She is in a spot of bother. If she leaves the US, she triggers a 10 year ban. She has no option but to AOS. Having said that, these days USCIS is clamping down on VWP based AOS applicants.

zonryza said:
I don't understand why, though. Shouldn't Visa Waiver Overstays be able to AOS here in the USA if married to a USC? I read the instructions on the I-485, and it clearly states that Visa Waiver Overstays cannot AOS UNLESS HE/SHE IS AN IMMEDIATE RELATIVE OF A US CITIZEN. So, .....what's going on here?
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zonryza said:
I don't understand why, though. Shouldn't Visa Waiver Overstays be able to AOS here in the USA if married to a USC? I read the instructions on the I-485, and it clearly states that Visa Waiver Overstays cannot AOS UNLESS HE/SHE IS AN IMMEDIATE RELATIVE OF A US CITIZEN. So, .....what's going on here?
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That is true, but not the whole story.

Some court rulings have stated that only the immediate relative visa waiver entrants who didn't overstay can be eligible for AOS. Other court rulings said that USCIS may deny visa waiver overstays with no appeal possible, but didn't say that they must deny.

Going abroad for a consular interview will trigger the 10-year bar and automatic denial, so her only option right now is to stay in the US and file for AOS and hope that her USCIS district falls under the jurisdiction where "may deny" is applicable rather than "must deny", and also hope that USCIS will use their discretion to approve the case.
 
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So, can she still AOS with the I-797 saying that the documents have been forwarded to NVC?

Triple Citizen said:
She is in a spot of bother. If she leaves the US, she triggers a 10 year ban. She has no option but to AOS. Having said that, these days USCIS is clamping down on VWP based AOS applicants.
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TripleCitizen: I agree with you 100%. I think she should AOS as soon as possible (ASAP!):o However, her I-130 Approval Notice says that her documents will be sent to NVC. If she uses that I-130 Approval Notice to Adjust Status, will that be ok? Usually the I-797 Notice of Approvals will contain a clause saying something like "...the applicant is in the USA and will adjust status..." or something like that. However, her I-797 Approval Notice says that USCIS has already forwarded the documents to NVC. So, is it still ok to send a copy of that Approval Notice along with a completed I-485, I-765, and the Affidavit of Support, and file for AOS here in the USA?
 
Which district does North Carolina fall under? Is it a "may deny" or a "must deny" district?

Jackolantern wrote:
Going abroad for a consular interview will trigger the 10-year bar and automatic denial, so her only option right now is to stay in the US and file for AOS and hope that her USCIS district falls under the jurisdiction where "may deny" is applicable rather than "must deny", and also hope that USCIS will use their discretion to approve the case.



My question: Which district does North Carolina fall under? Is it a "may deny" or a "must deny" district?
 
Yes, she can file for AOS even though the NVC has it. Filing for AOS will move things back to USCIS.

She'll probably be denied anyway due to those Circuit Court rulings. But AOS is the only hope; consular processing will be guaranteed denial because of the 10-year bar, while AOS has the possibility that USCIS will use their discretion to approve the case (if she's in a state covered by one of the Circuit Courts that allows such discretion).
 
zonryza said:
Jackolantern wrote:
Going abroad for a consular interview will trigger the 10-year bar and automatic denial, so her only option right now is to stay in the US and file for AOS and hope that her USCIS district falls under the jurisdiction where "may deny" is applicable rather than "must deny", and also hope that USCIS will use their discretion to approve the case.



My question: Which district does North Carolina fall under? Is it a "may deny" or a "must deny" district?
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In that the person overstayed for so long, they do not meet the criteria as a "priority" for removal based solely on that overstay, so unless the person has been ordered removed already, this circumstance alone is unlikely to be an issue.

Recent overstays are a priority because they have not had a chance to build equity in order to qualify for relief. Also, a VWP overstay may be Ordered Removed by ICE without any right to be placed before an IJ and therefore cannot apply for adjustment before an IJ.

For a VWP overstay, USCIS replaces the IJ, and ICE as another part of DHS must work with USCIS to determine if the best outcome would be for USCIS to grant adjustment or for ICE to Order Removal. It is a tricky policy issue that is still being developed.
 
zonryza said:
My question: Which district does North Carolina fall under? Is it a "may deny" or a "must deny" district?
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North Carolina would fall under the 4th Circuit Court. I don't know what they've ruled on this situation, or how USCIS has taken action on their ruling (in some districts USCIS has been routinely denying VWP overstays even though the court didn't say they have to deny).

Is there important information about this case that we don't know? If her I-130 was approved in 2006 and her husband became a USC in 2006, why is it 5 years later that she's dealing with the AOS vs. NVC/CP decision? Was she in removal proceedings? What happened in the past 5 years?
 
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