Question regarding current status of AOS applicants / VWP

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frustrated_inpa

Registered Users (C)
Hello,

I have a question and am not sure if I am posting it in the right place or not. Perhaps if I am not someone can tell me where to post.

I am former PR now USC sponsoring my daughters (20 & 19) for GC. We had interviews yesterday - one approved - one pending outcome of VWP / AOS eligibility case in federal appellant court. Does anybody know what that case is about? I can find no information online anywhere.

The daughter this pertains to grew impatient in August 2008 after graduating from high school and not being able to work so she went back to Australia. We had been pending AOS since 1999 and the entire process was messed up due to us moving for my husbands job.

They denied the AOS in September of 2008 - she was not overstay since she was in Australia by then anyway. She came over to visit July 2009 for 6 weeks and returned to Australia in September 2009. She then decided she wanted to come back here and have the process restarted. Immigration lawyer on another forum suggested quickest way, since she will age out December of this year, was here on VWP - then apply since there were exceptions for immigrating dependents of USC. She returns in December 7 09 - valid VWP through March 7 10. Application PD of April 22nd 2010.

So we get to the interview and the officer says that she has not been an overstay however he cannot make a decision until he hears what is going to happen with the AOS / VWP case mentioned initially in this post.

My daughter has been here in the US since before she was 3, considers the US her home and is distraught that it is this aggravating and difficult to become a PR.

Can anyone please tell me what the case the officer is referring to is all about? And what the chances are that she may be approved.

Thanks in advance.
 
My daughter has been here in the US since before she was 3, considers the US her home and is distraught that it is this aggravating and difficult to become a PR.
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She has been in the US as a young child in what immigration status? If she was here illegally, that is where the problem lies.

First, unlawful presence in the US for 180 days means being banned from entering the US for 3 years, starting from the day one leaves the US. 10 years if the overstay was 1 year or more.

However, for the purposes of that ban they don't count time in the US spent below age 18, so the ban would not have been triggered if your daughter left before age 18 + 180 days. So either she left before that age and didn't trigger the ban, or if she was still in the US illegally beyond that age, they didn't realize she was in the US illegally at that time so they let her back in last year.

If we assume she didn't trigger the 10-year ban, the other issue is that people who have overstayed in the past are not eligible to use the VWP; they have to apply for an actual visa at a consulate. So her problem might be that the VWP entry is not considered valid due to the old overstay, and she was supposed to apply for a visa before returning to the US. And her VWP entry being invalid would mean she is ineligible for AOS. So maybe that is what the court case is trying to sort out.

Other speculative possibilities of what is going on in that court case include:
- Changes of status are disallowed with the VWP, and maybe USCIS decided to start interpreting it to mean adjustment of status is not allowed.
- Or they said adjustment of status is not allowed if filed past the 90-day limit of the VWP
- Or they say the leniency regarding preconceived immigrant intent for children and spouses of US citizens does not apply to those who used the VWP to enter

You should have asked the officer for more details of the case, if the court allows those details to be released at this time. If you had the name of the case your lawyer could search for it with Lexis-Nexis or whatever they use now, or it might even be on the Internet. Maybe you can go back and ask the officer for the case details, if you didn't already do so.

Now the problem is that if she turns 21 while waiting for the outcome of that court case, and her AOS ultimately gets denied, it will be some 5+ years before she can obtain a green card through you as an over-21 daughter of a US citizen. However, that court case is related to AOS when using the VWP, and should not affect her ability to obtain a green card through the consulate. So if she leaves the US and withdraws this I-485 before she turns 21, and you withdraw the I-130 and file a new one before she turns 21, or you keep the I-130 alive but file I-824 to switch processing to a consulate in Australia, she should still be able to get the GC late this year or early next year by completing the process in Australia. Discuss that possibility with a lawyer.

What was the reason for the denial in 2008?
 
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frustrated_inpa said:
Immigration lawyer on another forum suggested quickest way, since she will age out December of this year, was here on VWP - then apply since there were exceptions for immigrating dependents of USC.
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That was bad advice, as she would have been refused entry if the officer at the POE knew she had a USC parent. And there was no need to get her into the US quickly with the VWP to protect her from aging out; she could have stayed in Australia while the CSPA would have protected her from aging out even if she turned 21 or 22 during the process, as long as you had filed the I-130 before she turned 21. Instead of facing this AOS limbo, if you filed I-130 with the consular option her GC probably would have been approved at the consulate in Australia this summer.
 
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Thanks for your help. Here are answers to your question:

Immigration officer stated that since she was still pending AOS on first application originally filed and not denied until september 08 she does not trigger 10 year ban - the first half of the interview he thought she would be but when he found denial letter he changed his notes to reflect that fact. She was denied because she failed to appear for interview in September 08 for which we received notice shortly after she left in August 08....go figure.

I was not USC at time of entry (dec 09) and obtained through naturalization in Feb of this year. He offered no details and stated he would not regarding the case in federal court that he was referring to, but only said they were determining the interpretation of that law that provides exceptions to dependants of USC for immigration while here on VWP. He said that a couple of weeks ago he heard they were about a week away from a decision and it should be anytime that he hears something "down the pipe".


I guess if I knew exactly what the case ws about I could figure out what my next move will be. Not sure what else I need to do in the interim to be prepared for next step if necessary. Hence the frustration. Would I now need to send her back to Australia, apply for B2 visa, and reapply or does the I-130 constitute a replacement to her original VWP status and allow her to stay until GC issued.

So confused and frustrated!!
 
frustrated_inpa said:
I was not USC at time of entry (dec 09) and obtained through naturalization in Feb of this year. He offered no details and stated he would not regarding the case in federal court that he was referring to, but only said they were determining the interpretation of that law that provides exceptions to dependants of USC for immigration while here on VWP. He said that a couple of weeks ago he heard they were about a week away from a decision and it should be anytime that he hears something "down the pipe".
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Looks like this is something that affects the eligibility for going VWP -> AOS -> GC. You don't know if or how it affects your daughter's case, but it seems quite clear that it is unrelated to obtaining a GC via the consulate. So you need to preserve her ability to get a GC via the consulate while she is still classified as an under-21 child of a USC.

That can be done by filing I-824 to move the existing case to the consulate; if you do this before her AOS is denied, they will cancel the AOS but keep the I-130 alive and allow her to continue the process in Australia.

Or you can withdraw the I-130, have her leave the US, and then file a new I-130 before she turns 21.

If the I-130 has been approved, I would suggest the I-824. But if the I-130 is still pending, or USCIS denies the AOS, I would suggest withdrawing the existing I-130 and filing a fresh new I-130 with the desired consulate specified.

However, before taking any action and having her leave the US, it would be wise to wait at least a few weeks for the outcome of that case, and hope it turns out favorably and results in her AOS approval. Of course, you can't wait forever for the court decision; once she turns 21 the game might be over.
 
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frustrated_inpa said:
Thanks for your help. Here are answers to your question:

Immigration officer stated that since she was still pending AOS on first application originally filed and not denied until september 08 she does not trigger 10 year ban - the first half of the interview he thought she would be but when he found denial letter he changed his notes to reflect that fact. She was denied because she failed to appear for interview in September 08 for which we received notice shortly after she left in August 08....go figure.

I was not USC at time of entry (dec 09) and obtained through naturalization in Feb of this year. He offered no details and stated he would not regarding the case in federal court that he was referring to, but only said they were determining the interpretation of that law that provides exceptions to dependants of USC for immigration while here on VWP. He said that a couple of weeks ago he heard they were about a week away from a decision and it should be anytime that he hears something "down the pipe".


I guess if I knew exactly what the case ws about I could figure out what my next move will be. Not sure what else I need to do in the interim to be prepared for next step if necessary. Hence the frustration. Would I now need to send her back to Australia, apply for B2 visa, and reapply or does the I-130 constitute a replacement to her original VWP status and allow her to stay until GC issued.

So confused and frustrated!!
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Hi Dad,

You are partly to blame for the mess which your daughter finds herself in. Her impatience as well is a factor, her leaving in August 08 created an issue for your family, each time a beneficiary to any petition leaves the US without proper documentation (i.e advance parole or military assignment), the petition is considered abandoned. In this case, her missing the interview wasn't the fault of USCIS, but of her impatience. I am NOT familiar with the exception which the IO alluded to in your discussion, but sound arbitrary to me because USCIS strive to create a sense of uniformity in the application and interpretation of the immigration law. I would be hard pressed to find an exception to someone deliberately ignoring the process (leaving for Australia=meet this criteria).

The lawyer who convinced you to have your daughter return under the VWP was and still wrong. This misinformation might prove to be costly in the long run, time and money. As Jack said, remaining in Australia would have protected her under the initial filing, plus by your indicating to the USCIS that you want the petition to be process via the US consulate in Australia as opposed to offices here. Unfortunately, she doesn't qualify or would be difficult to qualify for a B2 visa, she has intent to remain in the US indefinitely, as shown by application for a GC. I hope you have steer clear of this lawyer, because he/she caused you enough trouble already in my view. The case in federal court, where your or daughter served with paper's? You just have to hope that somehow the judge is a little drunk or an immigrant himself/herself and can find a level of sympathy in your case. However, Australia isn't a poor country, so denying her case wouldn't cause too much hardship for her, except that 18 hour flight to down under. For now, wait and hope for the best...unless she agrees to be a spy against Hamas, which will get her political asylum in the US in 15 minutes at a federal court.

http://www.jpost.com/International/Article.aspx?id=180032
 
frustrated_inpa said:
The daughter this pertains to grew impatient in August 2008 after graduating from high school and not being able to work so she went back to Australia.
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Do you mean she was legally unable to work? Or is it just that she couldn't find a job?

If you meant legally unable, that is a false perception, because upon having filed the AOS in 2008 she could have obtained an employment authorization card to allow her to work legally.
 
The more I read the more conflicting and confusing everything is =[

The original application was filed by my husband since he was USC and it was supposed to be quicker, they were his stepdaughters. After we were divorced and prior to them ruling that as long as there was still contact between step-parent / step-child he could still sponsor we had all the issues with them forwarding the applications between Virginia and Pennsylvania when we moved.

I'm absolutely convinced that the left hand and right hand of the USCIS don't know what each is doing. They denied the other daughter with denial date of 2002 (failure to appear) and this daughter 2008 (also failure to appear). I tried to obtain original I-130 status through FOIAA for this daughter but it took over a year and by then we had the denial letter anyway.

It's a complete mess hence the naturalization for me so that I could just go ahead and sponsor them both on a new application. Ironically enough my ex-husband and I have since reconciled and he is my joint-sponsor for the daughter in question. The other daughter was able to have I-864W since I earned 40 credits prior to her turning 18.

The case in court is not my daughters case but as orginally stated something relating to eligibility of VWP to AOS if dependant of USC and how the language of the law is to be interpreted and applied to each similar case. I really just need to find out the details on that case so I can see if there is similarity.

At no time were either of my daughters here illegally and neither have over 180 days out of status after age 18 thankfully. The immigration officer stated that her leaving triggering denial for abandonment of application in September of 2008 is in her favor since she was still considered pending for the period of time after her 18th birthday (dec 2007) up until she left in August of 2008.

Ultimately I am trying to not cause more turbulence in the case by moving it to consular processing and need to figure out what I might need to do if she happens to be denied because of this "other" case IO referred to.
 
They denied the other daughter with denial date of 2002 (failure to appear)
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They never sent acknowledgement that they had moved the files or a notice. And yet we failed to appear? And why wasn't other daughter denied at same time, because her case was sitting in National Archives somewhere - it actually took me almost two years of constant phonecalls to even get her receipt number since we never got one at time of initial filing. For the other daughter the receipt constituted a form letter with a hand written EAC number at the top.

I might also add that all of this transpired around the time they closed the Alexandria / DC field office which would / should of handled these applications.

Really wondering if any of this is worth all the headaches, money and time that it is taking.

I have three younger kids all born here that I can give australian citizenship to by a simple form and $300 combined. No headaches or bs - why can't the USA simplify this process.
 
When we were in the interview we asked the IO why a lawyer would suggest the VWP -> AOS as USC sponsor if incorrect or unable to do in the first place and he said that it was not mis-information, that it was allowed previously, however that whoever and for whatever reason this "current appeal case" is concerning is why he can't pass a decision until he receives word on how they will be processing cases such as these going forward, essentially until they make a ruling. In essence we are in limbo. I would just like to know what the appeal case is all about to begin with so I can try and figure out which way it may go. I need a crystal ball. =(
 
frustrated_inpa said:
Ultimately I am trying to not cause more turbulence in the case by moving it to consular processing and need to figure out what I might need to do if she happens to be denied because of this "other" case IO referred to.
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Don't think of the consulate as "turmoil", think of it as a saving grace. It will free her from the repercussions of that court case. And the consulate could have also saved her back in 2008. When she left back then, had it been transferred to a consulate she could have gotten the green card in 2008 or early 2009.

You don't have to do anything right now, as she still has 5 months left before she turns 21. There is time to think it through and consult a lawyer or two. But if you sit back and do nothing and let her turn 21 while that court case and her own case are still pending, that would be risking doom.
 
Jackolantern said:
Don't think of the consulate as "turmoil", think of it as a saving grace. It will free her from the repercussions of that court case. And the consulate could have also saved her back in 2008. When she left back then, had it been transferred to a consulate she could have gotten the green card in 2008 or early 2009.

You don't have to do anything right now, as she still has 5 months left before she turns 21. There is time to think it through and consult a lawyer or two. But if you sit back and do nothing and let her turn 21 while that court case and her own case are still pending, that would be risking doom.
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If I send her application for consular processing does she have to go over there and wait it out? Also how will that affect her EAD that she has had approved and is in production currently? Is there anyway for her to stay and travel to Australia at the time it is processed? And do I need to go over there as well?

I know I have a lot of questions and I appreciate your advice on the matter. It seems like the more I think about it and read the more complicated it becomes. :(
 
If you switch to consular processing, they will cancel her AOS and EAD. She will then have to leave the US because she has no other visa that would allow her to stay and wait in the US until the consular appointment. You will not have to go to Australia with her.

Yes, it might sound complicated, but think about how devastating it will be if you do nothing, she turns 21, and then her AOS is denied. She would have to leave the US and wait 5+ years in the over-21 category, and still have to deal with the consulate.
 
Just received notice that I-130 was approved - does this change anything that I might be able to do if they won't let her AOS because of VWP appellant case??

Thanks.

(BTW - 2nd daughter who was also sponsored at the same time but didn't have anytime outside of the US since arrival as B-2 in 1992 was approved GC - 2 months 8 days from receipt to approval......why couldn't it have worked this quickly way back when?!)
 
While the I-130 was still pending, the consulate couldn't do anything with it; they'd first have to wait for USCIS to complete the processing on it.

The I-130 approval means it is now ripe to be transferred to the consulate if/when you decide to do that, and she would have her GC probably within 2-4 months after you transfer it. But filing I-824 to do the transfer would mean she has to leave the US, since the consular transfer would cancel the AOS and she would have no other legal basis to stay in the US while waiting for the consular appointment.
 
Thanks for your help. Does it change my options any for her processing here in the states though......as in if AOS denied because of the outcome of the appellant case, could I reapply for fresh AOS considering she is now considered to be here on an Immigrant visa?

She has no family in Australia that she could stay with while she is waiting consular processing and even though at 20 you would think she could fend for herself, unfortunately it was not successful in previous attempts while she was there. We've been here for almost 18 years this November. I would have to go over with her and that also involves taking my 3 youngest which starts to add up $$, not to mention being away from my husband for a lengthy period.
 
You said you've reconciled with your ex-husband, right? Since your ex is your daughter's stepfather, he can file a new I-130 right now for her, specifying the desired consulate. So she would have one I-130 from you, and one from him. It is acceptable to have multiple I-130s if they are filed by different people.

Then she can continue to wait inside the US for the existing case; once USCIS approves the new I-130 they'll send it to the consulate and she can go to Australia at that time to complete the formalities, if the old case still has not been approved. That way you wouldn't have to transfer anything, and she wouldn't have to wait outside the US for a long time, unless they deny the existing case before the consulate is ready for the new case.

And if that denial forces her to leave the US sooner than planned, she doesn't have to spend the whole time in Australia. She just has to be outside the US, anywhere in the world, until it is time to spend a couple weeks in Australia to complete the process with the consulate.
 
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